Defendant’s Decision to Testify

Because the prosecution always has the burden of proof in a criminal case, the prosecution presents its case first. After the prosecution witnesses have testified, the defense has an opportunity to present evidence and witnesses.

Obligation to Present Evidence

Because a defendant is presumed innocent, the defense is not under any affirmative obligation to present evidence. Principles of Due Process require that the defense be given the opportunity to present evidence IF the defense chooses to do so. But there is no legal requirement that the defense do so.

Rather than presenting witnesses as part of the defense case, a good defense attorney may instead choose a strategy that emphasizes testimony from the prosecution’s witnesses under cross-examination. Prosecution witnesses may also be used to admit physical evidence or even to impeach other prosecution witnesses.

Privilege Against Self-Incrimination

In addition to the presumption of innocence, a defendant has a privilege against self-incrimination. This means that a person cannot be compelled to give evidence or testimony against himself in a criminal case.

Courts have found a few gray areas relating to the idea of giving evidence – such as submitting a compelled handwriting sample, giving a blood or dna sample, appearing in a line-up or giving a speech sample. But in the area of giving testimony at trial, courts have uniformly held that a defendant has the final word in deciding whether or not to testify.

There are advantages and disadvantages to a defendant’s decision either to testify or not testify. Testifying subjects the defendant to cross-examination by the prosecutor and potentially opens the door to evidence that would otherwise be inadmissible. But testifying gives a jury the opportunity to hear directly from the person who has been accused.

A good attorney will advise a client on the pros and the cons of both options. Deciding whether to testify or not testify at a criminal trial can be a difficult decision. The defendant ultimately is the one who must make the final decision. Having good counsel and an experienced defense team is important in ensuring that the best information is available to the defendant in making that decision.